A Guide to Thinking about SCOTUS Nominations

There is, understandably, a great deal of passion about SCOTUS nominations.  If anything, we are talking about lifetime appointments.  Still, I prefer a more dispassionate approach unless some factor exists to really justify a great deal of passion (and I recognize that passionate responses vary from person to person).

On balance, I have long taken a view that the issue at hand is whether a candidate is qualified for the office or not, and that from there presidents pretty much have the right to pick whomever they prefer and that the Senate is largely obligated to confirm qualified candidates (although thoroughly recognizing its right to objection to a nominee if there is legitimate cause that enough Senators agree upon).  My thinking goes something like this:

1. Presidents tend to nominate candidates who are within that president’s basic ideological sphere. As such, there is no point in being surprised that Bush appoints someone in that vague center-right space of American politics or that Obama appoints someone from the similarly vague center-left. Not only should no one be surprised, getting up in arms over the basic ideology of a given nominee is pointless unless it is truly outside of the acceptable space of American politics, which is a rather unlikely outcome as presidents have little motivation to make such a selection.

2. While thorough hearings and public vetting are required and good, there is no point in a massive opposition campaign to a legitimate candidate for the Court. If the candidate lacks a major flaw and is qualified, then the president has made a constitutionally acceptable choice and the likelihood is that the Senate will confirm.

It takes a pretty massive amount of opposition to defeat a SCOTUS nomination—especially if the President’s party holds the Senate.

3. Justices once on the bench often do not behave as we expect they will (see, for example, David Souter, but even the retiring Justice Stevens). As such, histrionics about what they may or may not do once on the bench are almost pointless. A broader example that goes beyond talking about individual behavior of given Justices: after all those Republican appointees in the 1970s, 1980s and 2000s, abortion remains quite legal in the United States.

4. Following on from point #3: since we do not know what issues will come before the Court, and in what form they will arrive, we really have a hard time knowing what the Court will do, or how a given member will affect its behavior. The Court is not a legislative body that can address whatever issues it likes in whatever manner that it likes.

Conclusion: when a president makes an appointment to the Court, my main question is not about political inclinations (see point #1) or what I think they will do on the Court (see points #3 and #4), but rather simply about general qualifications (point #2).

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Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter


  1. PD Shaw says:

    I think that’s fine as far as the conventional frame.

    But I also think any President’s decision is a political one, and it’s the job of his supporters to use the available process to make the political case. It’s likewise the job of the opposition to muddy the message and take away their own political point about the appointment. So, for instance, Kagan quoting Justice Thurgood Marshall is a good way of making the case that the President wants activist justices, contrary to his statements following Citizens United. Clearly, quoting a Supreme Court Justice isn’t a disqualifier. I assume that is what the military issues are about, not Kagan, it’s about the President.

  2. Wayne says:

    Re “Conclusion”
    Sounds like you just care if they punch the right tickets (whatever those are) on the way to the nomination.

    To me what they will do on the Court is what is important. Not if they were a lawyer or Judge on an appellate court. Those qualifications only help them in understanding the internal working of the courts. It shows little of what type constitutional decision maker they are. Yes an appellate Judge does give some clue but unless they are an activist judge, they will generally try to make decisions that they think won’t be overturn.

    As you have said, it is always a gamble because once they are confirmed you are never sure what they will do. However it would be foolish not to try to get some sort of inclination of what they will do. I would not want someone who thinks they should rule however they want. I want them to interpret it in the way it was written (no twisting and warping of words) and the intent of those who wrote it. IMO a historian (not simply a constitutional one) would be as good as qualification as anything.

    In the end all sides are more concern about what they will do on the Court than qualifications and rightly so. It is just the matter of wither they want a consistent Judge like I said or one that will promote their agenda.

    P.S. I have to find a way to be more concise. But it is hard when I want to write so much more.

  3. Ultimately, though, the main guide that we have to go by is the ideology of the president who appoints (imperfect a predictor though they may be). Nominees will not answer questions about future hypothetical cases, and so really the only thing one can look at are basic qualifications.